Citation Nr: 1030137
Decision Date: 08/12/10 Archive Date: 08/24/10
DOCKET NO. 08-31 338 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New Orleans,
Louisiana
THE ISSUE
Entitlement to service connection for spinal stenosis of the
lumbar spine.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Robert Morales, Law Clerk
INTRODUCTION
The Veteran served on active military duty from December 1959 to
January 1963 in the U.S. Navy.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from a December 2006 rating decision by the above Regional
Office (RO) of the Department of Veterans Affairs (VA).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran has filed a claim for entitlement to service
connection for spinal stenosis of the lumbar spine. In order to
establish service connection for a claimed disorder, it must be
shown that there is a causal relationship between a present
disability and a disease or injury incurred or aggravated during
service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir.
2004). Here, the Veteran has been diagnosed with spinal stenosis
of the lumbar spine and has stated that his back problems began
after landing on his back with a bag of chains on February 25,
1962 while on active military duty. However, there are no
medical opinions in the record as to whether the Veteran's
current disability is related to this in-service injury.
As such, VA has not provided the Veteran with a medical
examination in connection to the development of his claim. Under
VA's duty to assist, VA must provide the Veteran with a medical
examination when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a disability,
(2) evidence establishing that an event, injury, or disease
occurred in service or establishing certain diseases manifesting
during an applicable presumptive period for which the veteran
qualifies, and (3) an indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another service-
connected disability, but (4) insufficient competent medical
evidence on file for VA to make a decision on the claim.
McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C.A.
§ 5103A(d)(1) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4)
(2009). The record shows that there is medical evidence of a
current disability, lay evidence establishing an injury occurred
in service, and an indication that this injury is associated with
the Veteran's service. Here, the Veteran reported, during April
2004 private treatment, that he has had back pain in his lower
back off and on for the past 30 years. However, without a
medical nexus opinion on the etiology of the spinal stenosis of
the lumbar spine, the Board finds that there is insufficient
medical evidence on file for VA to make a decision on the claim.
Thus, the Veteran is entitled to a medical examination before his
claim can be decided on the merits. See McLendon, 20 Vet. App.
at 84.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a medical
examination to evaluate his spinal
stenosis of the lumbar spine. The claims
folder must be made available to the
examiner in conjunction with this
examination. The Veteran must be provided
proper notice of the date and time of the
scheduled examination. After reviewing
the claims file and examining the Veteran,
the examiner should offer an opinion as to
whether any disability identified is at
least as likely as not related to his
active duty service or any incident
therein. All opinions and conclusions
expressed must be supported by a detailed
rationale. If the examiner determines
that a medically-sound opinion cannot be
reached without resorting to mere
speculation, it is requested that an
explanation as to why that is so be
included.
2. Thereafter, readjudicate the Veteran's
claim for service connection for spinal
stenosis of the lumbar spine. If the
determination remains unfavorable to the
Veteran, then he and his representative
should be provided with a supplemental
statement of the case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112.
_________________________________________________
Kristi Barlow
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252, only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b).